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THE CHICAGO NATIONAL
PROCESSING CENTER, CHARLENE
GILES, in her official capacity as the Center
Director of the Chicago National Processing
Center, THE DEPARTMENT OF
HOMELAND SECURITY, JEH C.
JOHNSON in his capacity as the Secretary of
the United States Department of Homeland
Security, THE UNITED STATES
CITIZENSHIP AND IMMIGRATION
SERVICES, LEON RODRIGUEZ in his
official capacity as the Director of United
States Citizenship and Immigration Services,
THE CALIFORNIA SERVICE CENTER
FOR THE UNITED STATES CITIZENSHIP
AND IMMIGRATION SERVICE CENTER,
KATHY BARAN, in her official capacity as
the Director of the California Service Center
for the United States Citizenship and
Immigration Services, and DOES ONE
through TEN,
Respondents/Defendants.
COMPLAINT
Petitioners/Plaintiffs FRESH HARVEST, INC., REITER BROTHERS, INC., ITO
BROS., INC. and OCEAN BREEZE AG MANAGEMENT, LLC (collectively “Plaintiffs”)
hereby bring this Complaint against Respondents/Defendants, THE UNITED STATES
DEPARTMENT OF LABOR, THOMAS E. PEREZ in his official capacity as the Secretary of
the United States Department of Labor, THE OFFICE OF FOREIGN LABOR
CERTIFICATION, WILLIAM W. THOMPSON, II, in his official capacity as the Acting
Administrator of the Office of Foreign Labor Certification, THE CHICAGO NATIONAL
PROCESSING CENTER, CHARLENE GILES, in her official capacity as Center Director in
charge of the Chicago National Processing Center, THE DEPARTMENT OF HOMELAND
SECURITY, JEH JOHNSON in his capacity as the Secretary of the United States Department of
Homeland Security, THE UNITED STATES CITIZENSHIP AND IMMIGRATION
SERVICES, LEON RODRIGUEZ in his official capacity as the Director of United States
Citizenship and Immigration Services, THE CALIFORNIA SERVICE CENTER FOR THE
UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICE CENTER, KATHY
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BARAN, in her official capacity as the Director of the California Service Center for the United
States Citizenship and Immigration Services, and DOES ONE through TEN, (collectively
“Defendants”) alleging as follows:
INTRODUCTION
1. The H-2A temporary agricultural program allows agricultural employers who
anticipate a shortage of domestic workers to bring nonimmigrant foreign workers to the U.S. to
perform agricultural labor or services of a temporary or seasonal nature. Participation in the H-
2A program requires employers to receive multiple levels of approvals. Specifically, employers
must submit an H-2A application to the United States Department of Labor (“DOL”) with an
accepted Agricultural and Food Processing Clearance Order, the Application for Temporary
Employment Certification and Appendix A, attachments as appropriate and additional
documentation for H-2A Labor Contractors (collectively “H-2A application”). Once that
Application is certified by the DOL, employers submit an H-2A Petition for Nonimmigrant
Workers (“H-2A petition”) to the United States Citizenship and Immigration Services
(“USCIS”). Following USCIS approval, an employer can initiate the visa process outside the
U.S. and the transfer of foreign workers to the U.S. At all times material herein, Plaintiffs have
timely submitted the required H-2A applications, H-2A petitions, and all other documentation
and information to allow the Defendants to timely process the applications and petitions for
agricultural laborers in accordance with the mandatory statutory and regulatory timelines.
2. Plaintiffs bring this action for declaratory relief and preliminary and permanent
injunctive relief as well as for the issuance of a writ of mandamus to compel Defendants to
comply with statutory, regulatory, and internal policy requirements regarding the processing of
H-2A applications and petitions. Here, Defendants’ persistent and continuing failure to timely
process the H-2A applications and petitions deprives Plaintiffs of a sufficient workforce for the
needs of Plaintiffs as labor providers and growers. The irregularity with which the H-2A
applications and petitions are being processed deprives Plaintiffs of the ability to rely upon a
consistent, predictable, and recurring process for obtaining the labor which is necessary for
harvest. The resulting significant labor shortage is resulting in the substantial loss of crops, an
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inability to deliver that crop, and the non-performance of multiple contracts. Further the loss of
labor is resulting in an inability to satisfy commercial transactions with wholesalers and other
suppliers of fresh fruit, loss of reputation, and an inability to meet commercial demand. Such a
loss of supply will not only disrupt the stream of commerce but also result in increased consumer
prices for fruit. Similarly, food providers unable to buy their fruit from U.S. companies will buy
from foreign markets with lower quality standards and higher risks for contamination. Further,
fruit rotting on the vine can result in increased Botrytis and mold and increasing the presence of
rats and insects which can harm the long-term production of the plants.
PARTIES
3. Plaintiff FRESH HARVEST, INC. is a premier labor provider, staffing company
and harvesting company to the leafy green and berry industries. Fresh Harvest, Inc. specializes as
an H-2A labor provider to its customers in both Arizona and California since 2005. Fresh
Harvest, Inc. provides labor to growers in Yuma, AZ, Goodyear, AZ, Imperial Valley, CA,
Indio, CA, Oceanside, CA, Oxnard, CA, Salinas Valley, CA, Santa Maria, CA and other areas
within Arizona and California. Fresh Harvest, Inc. is also a registered business with the CA
Secretary of State with a business address in Heber, CA. Fresh Harvest, Inc. submits H-2A
applications for specific seasonal labor periods, to the DOL and H-2A Petitions to the USCIS to
obtain H-2A laborers to supply the necessary workforce for the growers which contract its
services. Fresh Harvest, Inc.’s inability to timely obtain the labor necessary to fulfill those
contracts will result in significant economic harm and harm to its reputation.
4. Plaintiff REITER BROTHERS, INC. is a berry grower which is incorporated in
California and has its principal place of business in Oxnard, CA. Reiter Brothers, Inc. has
contracted with Fresh Harvest, Inc. to provide much of its seasonal labor and relies upon that
labor in order to grow and harvest its berries. Without the labor provided by Fresh Harvest, Inc.,
Reiter Brothers, Inc. will be unable to timely harvest its crops and will be unable to fulfill
contracts to provide berries to various business and national food distributors.
5. Plaintiff ITO BROS., INC. is a berry grower which is incorporated in California
and has its principal place of business in Ventura, CA. Ito Bros., Inc. has contracted with Fresh
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Harvest, Inc. to provide much of its seasonal labor and relies upon that labor in order to grow and
harvest its berries. Without the labor provided by Fresh Harvest, Inc., Ito Bros., Inc. will be
unable to timely harvest its crops and will be unable to fulfill contracts to provide berries to
various business and national food distributors.
6. Plaintiff OCEAN BREEZE AG MANAGEMENT, LLC is a berry grower which
is incorporated in California and has its principal place of business in Oxnard, CA. Ocean Breeze
Ag Management, LLC has contracted with Fresh Harvest, Inc. to provide much of its seasonal
labor and relies upon that labor in order to grow and harvest its berries. Without the labor
provided by Fresh Harvest, Inc., Ocean Breeze Ag Management, LLC will be unable to timely
harvest its crops and will be unable to fulfill contracts to provide berries to various business and
national food distributors.
7. Defendants include the DOL which is the United States governmental department
responsible for the timely processing, accepting, and certifying all H-2A applications in the U.S.,
including those filed by Plaintiffs, or on Plaintiffs’ behalf. As such, this governmental entity is
being sued for its failure to timely engage in such actions. See, e.g., 8 U.S.C. § 1188; 20 CFR
Part 655.
8. Defendants further include THOMAS E. PEREZ, who is being sued in his official
capacity as the Secretary of the United States Department of Labor (“Secretary of Labor”) and as
the federal officer responsible for administering the timely processing, accepting, and certifying
all H-2A applications in the U.S., including those filed by Plaintiffs, or on Plaintiffs’ behalf. As
such, he is being sued in his official capacity for failing to timely engage in such actions or for
delegating those duties to other individuals who failed to timely engage in such actions. See, e.g.,
id.
9. Defendants further include the OFFICE OF FOREIGN LABOR
CERTIFICATION (“OFLC”) which is an office of the DOL and is the Office responsible for the
timely processing, accepting, and certifying all H-2A applications in the U.S. for the DOL,
including those filed by Plaintiffs, or on Plaintiffs’ behalf. As such, this governmental entity is
being sued for its failure to timely engage in such actions. See, e.g., id.
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10. Defendants further include WILLIAM W. THOMPSON, II, in his official
capacity as the Acting Administrator of the Office of Foreign Labor Certification,
(“Administrator of OFLC”) and as the federal officer responsible for administering the timely
processing, accepting, and certifying of H-2A applications in the U.S., including those filed by
Plaintiffs, or on Plaintiffs’ behalf. As such, he is being sued in his official capacity for failing to
timely engage in such actions or for delegating those duties to other individuals who failed to
timely engage in such actions. See, e.g., id.
11. Defendants further include the CHICAGO NATIONAL PROCESSING CENTER
(“CNPC”), which is responsible for the timely processing, accepting, and certifying of H-2A
applications in the U.S. on behalf of the OFLC and DOL, including those filed by Plaintiffs, or
on Plaintiffs’ behalf. As such, this governmental entity is being sued for its failure to timely
engage in such actions. See, e.g., id.
12. Defendants further include CHARLENE GILES, in her official capacity as the
Center Director of the Chicago National Processing Center (“Director of CNPC”) and as the
federal officer responsible for administering the timely processing, accepting, and certifying H-
2A applications in the U.S. which are sent to the CNPC, including those filed by Plaintiffs, or on
Plaintiffs’ behalf. As such, she is being sued in her official capacity for failing to timely engage
in such actions or for delegating those duties to other individuals who failed to timely engage in
such actions. See, e.g., id.
13. Defendants further include the UNITED STATES DEPARTMENT OF
HOMELAND SECURITY (“DHS”), which is responsible for timely adjudication and approval
of all H-2A petitions in the U.S., including those filed by Plaintiffs, or on Plaintiffs’ behalf. As
such, this governmental entity is being sued for its failure to timely engage in such actions. See,
e.g., Sheikh v. United States Dep’t of Homeland Sec., 685 F. Supp. 2d 1076, 1086-94 (C.D. Cal.
2009); USCIS Adjudicator’s Field Manual, Chapter 31.4(c) (2009) and subsequent updates. A
true and correct copy of the USCIS Adjudicator’s Field Manual, Chapter 31.4(c) is attached
hereto as Exhibit 1, and incorporated as if stated in its entirety herein (“AFM Rules”).
14. Defendants further include JEH JOHNSON in his capacity as the Secretary of the
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United States Department of Homeland Security (“Secretary of DHS”) and as the federal officer
responsible for administering the timely adjudication and approval of all H-2A petitions in the
U.S., including those filed by Plaintiffs, or on Plaintiffs’ behalf. As such, he is being sued in his
official capacity for failing to timely engage in such actions or for delegating those duties to
other individuals who failed to timely engage in such actions. See, e.g., id.
15. Defendants further include the USCIS, which is the agency for the DHS which is
responsible for the timely adjudication and approval of all H-2A petitions in the U.S., including
those filed by Plaintiffs, or on Plaintiffs’ behalf. As such, this governmental entity is being sued
for its failure to timely engage in such actions. See, e.g., id.
16. Defendants further include LEON RODRIGUEZ in his official capacity as the
Director of the United States Citizenship and Immigration Services (“Director of USCIS”) and as
the federal officer responsible for administering the timely adjudication and approval of all H-2A
petitions in the U.S., including those filed by Plaintiffs, or on Plaintiffs’ behalf. As such, he is
being sued in his official capacity for failing to timely engage in such actions or for delegating
those duties to other individuals who failed to timely engage in such actions. See, e.g., id.
17. Defendants further include the CALIFORNIA SERVICE CENTER FOR THE
UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES (“CA Service Center”),
which is the part of the DHS and is responsible for the timely adjudication and approval of all H-
2A petitions in the U.S., including those filed by Plaintiffs, or on Plaintiffs’ behalf. As such, this
governmental entity is being sued for its failure to timely engage in such actions. See, e.g., id.
18. Defendants further include KATHY BARAN, in her official capacity as the
Director of the California Service Center for the United States Citizenship and Immigration
Services, (“Director of the Service Center”) and as the federal officer responsible for
administering the timely adjudication and approval of all H-2A petitions for approximately half
of the U.S., including those filed by Plaintiffs, or on Plaintiffs’ behalf, with the CA Service
Center. As such, she is being sued in her official capacity for failing to timely engage in such
actions or for delegating those duties to other individuals who failed to timely engage in such
actions. See, e.g., id.
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19. Defendants further include DOES ONE THROUGH TEN, inclusive, who are
sued herein because Plaintiffs are ignorant of the true names and capacities of the defendants.
Plaintiffs will amend this complaint to allege their true names and capacities when the same are
ascertained.
20. Plaintiffs are informed and believe, and thereon allege that, at all times
mentioned, each Defendant was, in doing the things complained of herein, the agent or employee
of their co-defendants herein and was acting within the scope of said agency, service,
employment, or representation, and that each and every defendant herein is jointly and severally
liable to each and every Plaintiff for the harm caused by the failure to timely process Plaintiffs’
H-2A applications and petitions.
21. Additionally, DOL, Secretary of Labor, OFLC, Administrator of OFLC, CNPC,
and Director of CNPC will hereinafter be collectively referred to as “the DOL Defendants” and
DHS, Secretary of DHS, USCIS, Director of USCIS, CA Service Center, and Director of the
Service Center will hereinafter be collectively referred to as “the DHS Defendants.”
JURISDICTION, STANDING, AND VENUE
22. The Court has federal question jurisdiction over this matter pursuant to 28 U.S.C.
§ 1331 as this action arises under the laws of the United States, including the Administrative
Procedure Act (APA), the law that provides for judicial review of “agency action” as defined in
5 U.S.C. § 551(13) under the requirements of that law in Sections 553 and 701 et seq.,
declaratory relief under 28 U.S.C. § 2201(a), and the issuance of a writ of mandamus pursuant to
28 U.S.C. § 1361. Applicable statutes, regulations, and policies under which the rights of
Plaintiffs have been violated are set forth at 8 U.S.C. §§ 1101(a)(15)(H)(ii)(a), 1103(a), 1184(c)
and 1188; 20 CFR Part 655; and AFM Rules, Chapter 31.4(c).
23. As discussed in the party descriptions above and in the factual background section
below, Plaintiffs have standing to bring this petition and complaint because their ability to fulfill
labor contracts and grow and harvest their crops are being harmed, and will continue to be
harmed, by Defendants’ failure to timely process H-2A applications and petitions resulting in a
/ / /
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labor shortage. Such harm, and all harms resulting therefrom, can only be remedied through
Defendants timely performing their duties.
24. Venue is proper in the Central District of California, Western Division. Plaintiffs
are all registered corporations or companies with the California Secretary of State and are located
in or have sufficient minimum contacts within the Central District of California to constitute
personal jurisdiction. Further, a substantial part of the events and omissions giving rise to the
claim occurred within the Central District of California since this is where all three of the
growers in this case “reside” and where the H-2A labor is needed to grow and harvest their
respective crops. The Defendants are agencies, or subdivisions of agencies, of the United States
Government and the persons who lead those agencies, or subdivisions, are being sued in their
official capacities. 28 U.S.C. §§ 1391(b), (c)(2), (d) and (e). Additionally, the CA Service Center
is located within the Central District of California.
FACTUAL BACKGROUND
25. The DOL Defendants must fulfill mandatory statutory deadline requirements as
well as requirements of DOL regulations in connection with duly filed and completed
applications by Plaintiffs who need a legal, temporary foreign workforce (pursuant to the H-2A
foreign temporary worker program) because they have not found able, willing, qualified, and
available United States workers to perform their seasonal or other temporary work. The DOL
Defendants are statutorily required to certify a complete H-2A application not later than 30 days
before the date the labor is needed. 8 U.S.C. § 1188(c); 20 CFR § 655.141(b)(3) (2013).
26. A true and correct copy of Plaintiffs’ H-2A Applications And Petitions Chart is
attached as Exhibit 2, and incorporated as if stated in its entirety herein. Exhibit 2 is a listing of
the H-2A applications submitted by Fresh Harvest, Inc. from January 2016 to the present.
Included in Exhibit 2 is a list of the Grower, the numbers of workers needed, the worksite-county
in which the workers will be working, the temporary dates the workers will be needed
(SEASON), the date of the DOL filing, the deadline for a NOD to be provided by the DOL
Defendants (NOD DUE DATE), the date a NOD was issued by a certifying officer for the DOL
Defendants (NOD FILED), the date a Notice of Acceptance was sent by a certifying officer
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either because there were no deficiencies or after the deficiencies were cured (NOTICE OF
ACCEPTANCE), the date certification was due, the date certification was signed (DATE
CERTIFIED), the date the Company submitted a petition to the USCIS (USCIS FILING DATE),
the date that the Company received the receipt notice from the USCIS (RECEIPT NOTICE
RECEIVED), and the USCIS approval date (APPROVAL DATE). Based on Exhibit 2, of the
five growers whose seasons which have already started, only three have been certified by both
the DOL Defendants and the DHS Defendants. One of those three was only certified once the
season had already begun.
27. Plaintiffs have multiple applications which have not been processed, accepted,
and certified by the DOL less than 30 days before the date labor or services are first required to
be performed. (See Exhibit 2.) 8 U.S.C. § 1188(c)(3); 20 CFR § 655.141(b)(3) (2013).
Additionally, Fresh Harvest, Inc. anticipates making additional H-2A applications.
28. So far this year, every single H-2A application, except one, made to the DOL
Defendants by Plaintiffs, which has come due, has either not yet been certified or was certified
three to twenty-three (23) days after the date the certification was required. (See Exhibit 2.) As a
result, well over 1,600 temporary H-2A farm workers have either been certified late or not
certified at all despite DOL being beyond the statutory deadline.
29. USCIS’ own policies require that they must expeditiously process H-2A petitions
within approximately four to five days of receipt. AFM Rules, Chapter 31.4(c).
30. Plaintiffs have made four H-2A petitions to the USCIS, through the CA Service
Center, so far this year. Fresh Harvest, Inc. will submit additional H-2A petitions, including
petitions for the seven companies which currently have H-2A applications pending before the
DOL once the DOL approves those applications. To date, approval times have taken between
eight and fifteen days to process. (See Exhibit 2.) Further, based on information and belief,
Plaintiffs understand that the USCIS has stated that the processing time for the California Service
Center to adjudicate and approve H-2A petitions is currently taking one month. See, e.g., USCIS
Processing Time Information for the California Service Center. A true and correct copy of
/ / /
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USCIS Processing Time Information for the California Service Center (March 14, 2016) is
attached as Exhibit 3, and incorporated as if stated in its entirety herein.
31. Plaintiffs are growers of berries for interstate and intrastate sale and the company
which supplies labors to those growers to grow and harvest their crops.
32. These commodities are perishable commodities and a lack of labor to grow and
harvest these crops will result in a loss of agricultural products. For example, of the over 1600
workers which Fresh Harvest has requested, if 1000 of those workers are unable to pick
strawberries then that represents a loss of approximately 85,000 cases of strawberries for every
day that the workers are delayed for a loss of approximately $1,000,000.00 per day. Likewise,
having 380 of those workers unable to pick vegetables represents a loss of approximately
175,000 cartons of vegetables per week. In other words, every day of delay is resulting in a
substantial amount of lost crops for the companies which contract with Fresh Harvest to provide
labor.
33. The significant delays in delays in the certification of the H-2A applications and
H-2A petitions is resulting in the substantial loss of crops, an inability to deliver that crop, the
non-performance of multiple contracts, an inability to satisfy commercial transactions with
wholesalers and other suppliers of fresh fruit, loss of reputation, and an inability to meet
commercial demand.
34. Further, fruit rotting on the vine can result in future harm to the production of the
fruit-bearing plant by increasing Botrytis and mold and increasing the presence of rats and
insects. These cause long-term damage to the plaints’ future production.
DOL STATUTORY AND REGULATORY BACKGROUND
35. The statutory authorization for the H-2A Program as a guest worker program,
separate and specifically for agricultural workers ,was created as part of the Immigration Reform
and Control Act of 1986 (“IRCA”). Pub. L 99-603, Title III, § 301(c), 100 Stat. 3411;
renumbered, § 218 and amended, Oct. 24, 1988, Pub. L. 100-525, §§ 2(l)(2), (3), 102 Stat. 2612.
36. As originally enacted, the detailed requirements that apply to both employers and
DOL were codified at 8 U.S.C. § 1186. These requirements are currently codified at 8 U.S.C. §
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1188. Based upon information and belief, the DOL Defendants are responsible for the execution
of this code section. Specifically, the DOL and the Secretary of Labor have entrusted the
processing, acceptance, and certification of H-2A applications to the OFLC which is one of the
offices of the DOL and run by the Administrator of OFLC. The OFLC has then entrusted the
processing, acceptance, and certification of the H-2A applications to the CNPC, run by the
Director of CNPC, which is either a part of the OFLC or an entity acting as an agent for the
OFLC. As such, the DOL Defendants are all held to the statutory standards set forth in 8 U.S.C.
§ 1188 and in 20 CFR Part 655.
37. As amended in 1999, the Secretary may not require that a prospective H-2A
employer application be filed “more than 45 days” before the first date the employer requires the
labor or services of the H-2A worker. 8 U.S.C. § 1188(c)(1). These applications are filed with
the CNPC which then processes, accepts, and certifies the applications on behalf of the
OFLC/DOL.
38. Once an application for temporary labor certification has been filed, the employer
“shall be notified in writing within seven days of the date of filing if the application does not
meet the standards … for approval.” 8 U.S.C. § 1188(c)(2)(A). The seven-day deadline is
mandatory. The regulations provide no basis upon which the seven (7) day deadline may be
extended. Moreover, “[i]f the application does not meet such standards, the [written] notice shall
provide the reasons therefor and the Secretary shall provide an opportunity for the prompt
resubmission of a modified application.” 8 U.S.C. § 1188(c)(2)(B).
39. The statutory and regulatory mandates are built into the requirement that the
“Secretary of Labor shall make, not later than 30 days before the date such labor or services are
first required to be performed, the certification described in [this section].” 8 U.S.C. §
1188(c)(3)(A).
40. The subsection now codified at 8 U.S.C. § 1188(c)(1), specifying the maximum
length of time before the date of need that the Secretary of Labor may require the filing of an
employer’s application for H-2A certification, is captioned “DEADLINE FOR FILING
APPLICATIONS.” (Emphasis in original.) The text, now at 8 U.S.C. § 1188(c)(2), which is
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captioned “NOTICE WITHIN SEVEN DAYS OF DEFICIENCIES” (Emphasis in original)
states that the Secretary of Labor must notify the employer in writing within seven days of filing
the application if the application for certification does not meet the applicable standards for
approval. The subsection that now provides that the Secretary “shall make [such certification],
not later than 30 days before the date such labor or services are first required to be performed”
carries the caption “ISSUANCE OF CERTIFICATION.” (Emphasis in original.) 8 U.S.C. §
1188(c)(3). These statutory instructions to the Secretary, including the requirements of 8 U.S.C.
§ 1188(c) as stated therein, demonstrate that H-2A time deadlines contained in the law are
mandatory obligations on the Secretary of Labor and the DOL. Accordingly, these deadlines may
not be varied or excused even by rulemaking.
41. There have been no amendments to the statute nor any purported regulatory
changes (even though the Secretary may not dispense with statutory requirements by regulation)
that would authorize, or purport to authorize, the Secretary to deviate from the deadlines
mandated in 8 U.S.C. §§ 1188(c)(2) and (3).
42. The U.S. Court of Appeals and US District Courts have previously invalidated
and held unlawful action by the DOL to suspend H-2A rules as a violation of the requirements of
the APA, 5 U.S.C. §§ 553 and 701 et seq. and as set forth in North Carolina Growers’ Ass’n, Inc.
v. Solis, 644 F. Supp. 2d 664 (M.D. N.C. 2009), aff’d sub nom. North Carolina Growers’ Ass’n,
Inc. v. United Farm Workers, 702 F.3rd 755 (4th Cir. 2012).
43. The timelines set forth by the regulations and the statutes, have built in the
possibility that employers, or their agents, will have to modify their applications. In recognition
of the stringent time restraints set forth in the H-2A statute requiring review and certification
authorization at least thirty (30) days before date of need deadline, the 2010 Regulations require
that any notice or request being sent by a certifying officer in the course of the review of an H-
2A application be sent to assure next-day delivery. 20 CFR § 655.140(b) (2013). The regulations
allow a reviewing certification officer to make one such request. If the certifying officer
determines that an Application for Temporary Employment Certification or job order is
incomplete, contains errors or inaccuracies, or does not meet the requirements set forth in the H-
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2A regulation requirements at 20 CFR Part 655, then the certifying officer must notify the
employer within seven (7) calendar days of the certifying officer’s receipt of the Application for
Temporary Employment Certification. 20 CFR § 655.141(a) (2013). Under the standard set out in
the Immigration Reform and Control Act, the DOL enacted the existing regulations that require
the DOL to issue a Notice of Deficiency (NOD) to the employer which states the reasons why
the application or job order fails to meet the criteria for acceptance. The DOL must offer the
employer the opportunity to submit a modified application or job order within five (5) business
days from the date of receipt of the notice from the certifying officer “stating the modification
that is needed” in order for the certifying officer “to issue the Notice of Acceptance” of the
application. 20 CFR § 655.141(b)(1) and (2) (2013). If the Employer submits a delayed response
to the NOD, the DOL’s final determination will be postponed by 1 calendar day for each day that
passes beyond the 5-business day period allowed. An Employer’s failure to respond to timely
respond to an NOD within 12 calendar days of issuance of the NOD will result in an
abandonment of the H-2A application. 20 CFR 655.142(a) (2013). If the employer, or agent,
makes the modifications required by the certifying officer, the original deadline for issuance of
the certification no later than thirty (30) calendar days before the date of need will be maintained;
otherwise, the employer must endure what is described as an expedited administrative review or
a de novo administrative hearing before a DOL Administrative Law Judge. 20 CFR §
655.141(b)(3-4) (2013). Since the regulations have built-in timelines for modifications,
imperfections with an application should not result in untimely processing, acceptance, or
certification of the application. These timelines also correspond with the timelines set forth by
statue in 8 U.S.C. § 1188.
44. Under the H-2A Application regulations, if the certifying officer determines that
the employer’s Application for Employment Certification and job order are complete and meet
the requirements set forth in 20 CFR § 655, Subpart B when it is submitted to OFLC, the
certifying officer must notify the employer of such acceptance “within seven (7) calendar days of
the certifying officer’s receipt of the Application for Temporary Employment Certification.” 20
CFR § 655.143(a) (2013). This notice authorizes the conditional access of the employer’s job
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order to the interstate recruitment system whereby prospective U.S. workers can learn of the job
opportunity and express their interest in it. Assuming the job order and Application are
acceptable as containing the required provisions, the certifying officer must grant full or partial
certification no fewer than thirty (30) calendar days before the date of need. 8 U.S.C. §
1188(c)(3). This deadline allows the employer to make a petition to the DHS through the USCIS
to authorize the issuance of visas by a U.S. Consular office or embassy to enable H-2A workers
to enter the U.S. so that the workers can be in place in time to begin work on the date of need.
BACKGROUND OF DHS/USCIS POLICIES AND PRACTICES
45. Federal Courts have determined that regulations and agency practices create a
“meaningful standard” by which the court may review an agency’s exercise of discretion under 5
U.S.C. 701(a)(2). Sheikh, 685 F. Supp. 2d at 1086-94.
46. The AFM Rules, Chapter 31.4, pertaining to Petitions for Temporary Workers
who are agricultural workers from foreign countries, states that “[o]n August 10, 2007 then-
Secretary of Homeland Security Michael Chertoff announced a series of reforms to streamline
the H-2A program. As part of the reform process, it is USCIS’ goal to adjudicate and approve all
H-2A petitions timely and efficiently.” The manual goes on to explain a process whereby H-2A
petitions are distributed to adjudication officers within three days of receipt; the adjudication
officer should adjudicate the petitions on the day the cases are assigned to them; and then, once
the approval notice is generated and printed, it should be sent to the petitioner within 24 hours of
the decision. See, AFM Rules, Chapter 31.4(c).
47. Based upon information and belief, the DHS Defendants are responsible for the
adjudication and approval of H-2A petitions. Specifically, Plaintiffs send their H-2A Petitions to
the CA Service Center which is run by the Director of the Service Center. The CA Service
Center is sole and exclusive USCIS Service Center that adjudicates and approves the H-2A
petitions on behalf, and/or as part, of the USCIS which is run by the Director of the USCIS. The
USCIS is part of the DHS, which is run by the Secretary of DHS, and is charged with
adjudicating and approving H-2A petitions. As such, the DHS Defendants can be held to the
/ / /
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e. Fresh Harvest, Inc. (Ito Brothers #1 60 workers – CA) season started March 14,
2016, certification still not received and is 37 days late as of the date of this filing.
f. Fresh Harvest, Inc. (Born & Sons #2 175 – AZ) season starts April 1, 2016,
certification still not received and is 19 days late as of the date of this filing.
g. Fresh Harvest, Inc. (Salinas lettuce 380) season starts April 1, 2016, certification
still not received and is 19 days late as of the date of the filing of this complaint.
h. Fresh Harvest, Inc. (Ito Bros #2 60 workers – CA) season started April 4, 2016,
certification completed March 10, 2016 (five days late).
i. Fresh Harvest, Inc. (Glad a Way Gardens 25) season starts April 18, 2016,
certification completed March 18, 2016 (only timely certified application received
to date).
j. Fresh Harvest, Inc. (OB #2 119) season starts April 18, 2016, certification still not
received and is two days late as of the date of this filing.
k. Fresh Harvest, Inc. (Blazer Wilkinson & Harvest Mgmt - 175) season starts April
15, 2016, certification still not received and is five days late as of the date of this
filing.
l. Fresh Harvest, Inc. (Reiter Bros, Inc. #1 - 20) season starts April 14, 2016,
certification still not received and is six days late as of the date of this filing.
51. The APA requires a court to “compel agency action unlawfully withheld or
unreasonably delayed.” 5 U.S.C. § 706(1); see also, Brower v. Evans, 257 F.3d 1058, 1068-69
(9th Cir. 2001).
52. As such, based upon information and belief, the Defendants have unlawfully
withheld and unreasonably delayed the processing, acceptance, and certification of H-2A
applications in violation of 8 U.S.C. § 1188(c)(2); 8 U.S.C. § 1188(c)(3); 20 CFR Part 655.
53. The irregularity with which the DOL Defendants are processing, accepting, and
certifying H-2A applications deprives Plaintiffs of a consistent, predictable, and recurring
process for obtaining the labor which is necessary for harvest. At the time of filing, H-2A
applications for well over 1,600 temporary H-2A farm workers have either been certified late or
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not certified at all despite DOL being beyond the statutory deadline. The resulting significant
labor shortage is resulting in the substantial loss of crops, an inability to deliver that crop, and the
non-performance of multiple contracts. Further the loss of labor is resulting in an inability to
satisfy commercial transactions with wholesalers and other suppliers of fresh fruit, loss of
reputation, and an inability to meet commercial demand. Such a loss of supply will not only
disrupt the stream of commerce but also result in increased consumer prices for fruit. Similarly,
food providers unable to buy their fruit from U.S. companies will buy from foreign markets with
lower quality standards and higher risks for contamination. Further, fruit rotting on the vine can
result in increased Botrytis and mold and increasing the presence of rats and insects which can
harm the long-term production of the plants.
54. Such harm can only be avoided through the DOL Defendants’ timely execution of
their duties to allow the initiation of the visa process outside the U.S. and the transfer of foreign
workers to the U.S. since there are insufficient numbers of domestic workers to perform the tasks
required by Plaintiffs.
55. Plaintiffs are therefore entitled to declaratory relief, preliminary and permanent
injunctive relief, and the issuance of a writ of mandamus in order to “compel agency action
unlawfully withheld” and “unreasonably delayed.” 5 U.S.C. § 706(1); 28 U.S.C. § 1361; 28
U.S.C. § 2201(a); Brower, 257 F.3d at 1068-69.
SECOND CLAIM FOR RELIEF
The DHS Defendants Violated Their Own Policies Regarding The Timely Processing Of
H-2A Petitions
[Injunctive Relief; Mandatory Relief Pursuant to 28 U.S.C. § 1361; 28 U.S.C. § 2201(a); 5
U.S.C. § 706(1)]
56. Plaintiffs re-allege and incorporate herein the allegations contained in paragraphs
1-55 above, as though set forth fully herein.
57. Based upon information and belief, the DHS Defendants have failed to comply
with their own policies and procedures by taking longer than 5 days to adjudicate and approve
/ / /
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the H-2A petitions submitted by Plaintiffs. Sheikh, 685 F. Supp. 2d at 1086-94; AFM Rules,
Chapter 31.4(c).
58. The APA requires a court to “compel agency action unlawfully withheld or
unreasonably delayed.” 5 U.S.C. § 706(1); Sheikh, 685 F. Supp. 2d at 1086-94; AFM Rules,
Chapter 31.4(c).
59. As such, based upon information and belief, the Defendants have unlawfully
withheld and unreasonably delayed the adjudication and approval of H-2A petitions in violation
of their own policies contained in the AFM Rules, Chapter 31.4(c). Such policies create a
meaningful standard by which to review agency action. Sheikh, 685 F. Supp. 2d at 1094.
60. The irregularity with which the DHS Defendants are adjudicating and approving
H-2A applications deprives Plaintiffs of a consistent, predictable, and recurring process for
obtaining the labor which is necessary for harvest. Such delays, if they continue, will ultimately
result in a significant labor shortage. Such labor shortage has and will result in the loss of crops,
an inability to deliver that crop, and the non-performance of multiple contracts. Further the loss
of labor is resulting in an inability to satisfy commercial transactions with wholesalers and other
suppliers of fresh fruit, loss of reputation, and an inability to meet commercial demand. Such a
loss of supply will not only disrupt the stream of commerce but also result in increased consumer
prices for fruit. Similarly, food providers unable to buy their fruit from U.S. companies will buy
from foreign markets with lower quality standards and higher risks for contamination. Further,
fruit rotting on the vine can result in increased Botrytis and mold and increasing the presence of
rats and insects which can harm the long-term production of the plants.
61. Such harm can only be avoided through the DHS Defendants’ timely execution of
their duties to allow the initiation of the visa process outside the U.S. and the transfer of foreign
workers to the U.S. since there are insufficient numbers of domestic workers to perform the tasks
required by Plaintiffs.
62. Plaintiffs are therefore entitled to declaratory relief, preliminary and permanent
injunctive relief, and the issuance of a writ of mandamus in order to “compel agency action
/ / /
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unlawfully withheld” and “unreasonably delayed.” 5 U.S.C. § 706(1); 28 U.S.C. § 1361; 28
U.S.C. § 2201(a); Sheikh, 685 F. Supp. 2d at 1086-94; AFM Rules, Chapter 31.4(c).
THIRD CLAIM FOR RELIEF
The DHS Defendants Cannot Unreasonably Delay The Timely Processing Of
H-2A Petitions
[Injunctive Relief; Mandatory Relief Pursuant to 28 U.S.C. § 1361; 28 U.S.C. § 2201(a); 5
U.S.C. § 706(1)]
63. Plaintiffs re-allege and incorporate herein the allegations contained in paragraphs
1-62 above, as though set forth fully herein.
64. The APA requires a court to “compel agency action unlawfully withheld or
unreasonably delayed.” 5 U.S.C. § 706(1); Sheikh, 685 F. Supp. 2d at 1086-94.
65. To the extent that the DHS Defendants may not have statutory or regulatory
guidelines regarding the time they have to process H-2A petitions, it is an unreasonable delay for
them to not adjudicate and approve such petitions until after a grower’s season has started.
Further, the clear intent of other statutes and the USCIS’ own policies and guidelines regarding
how quickly petitions should be turned around which provides more than enough time for the
DHS Defendants to process the petitions within the 30 day window which is supposed to be left
if the DOL Defendants have timely certified the H-2A applications. 8 U.S.C. § 1188(c)(2)(A-B);
8 U.S.C. § 1188(c)(3)(A); 20 CFR Part 655; Brower, 257 F.3d at 1068-69 [citing
Telecommunications Research & Action v. FCC (TRAC), 750 F.2d 70, 80 (D.C. Cir. 1984)].
66. The irregularity with which the DHS Defendants are adjudicating and approving
H-2A applications deprives Plaintiffs of a consistent, predictable, and recurring process for
obtaining the labor which is necessary for harvest. The resulting significant labor shortage has
and will result in the substantial loss of crops, an inability to deliver that crop, and the non-
performance of multiple contracts. Further the loss of labor is resulting in an inability to satisfy
commercial transactions with wholesalers and other suppliers of fresh fruit, loss of reputation,
and an inability to meet commercial demand. Such a loss of supply will not only disrupt the
stream of commerce but also result in increased consumer prices for fruit. Similarly, food
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providers unable to buy their fruit from U.S. companies will buy from foreign markets with
lower quality standards and higher risks for contamination. Further, fruit rotting on the vine can
result in increased Botrytis and mold and increasing the presence of rats and insects which can
harm the long-term production of the plants.
67. Such harm can only be avoided through the DHS Defendants’ timely execution of
their duties to allow the initiation of the visa process outside the U.S. and the transfer of foreign
workers to the U.S. since there are insufficient numbers of domestic workers to perform the tasks
required by Plaintiffs.
68. Plaintiffs are therefore entitled to declaratory relief, preliminary and permanent
injunctive relief, and the issuance of a writ of mandamus in order to “compel agency action
unlawfully withheld” and “unreasonably delayed.” 5 U.S.C. § 706(1); 28 U.S.C. § 1361; 28
U.S.C. § 2201(a); Sheikh, 685 F. Supp. 2d at 1086-94; AFM Rules, Chapter 31.4(c).
RELIEF REQUESTED
WHEREFORE, Plaintiffs respectfully pray that this Court award relief as follows:
A. Plaintiffs ask for the issuance of a temporary and, later, permanent injunction that
requires the DOL Defendants, in accordance with the APA, 5 U.S.C. §§ 551(13) & 706(1), in
good faith to complete actions by the mandatory timelines set out in the applicable statute and
regulations, including:
i. The issuance to Plaintiffs of any appropriate Notice of Deficiency or
Notice of Acceptance as to H-2A applications filed by Plaintiffs within seven (7)
days of the receipt by Defendants of such applications in accordance with 8
U.S.C. § 1188(c)(2) and 20 C.F.R. §655.143(a)(as to acceptances) and
§655.141(a)(as to deficiencies);
ii. In connection with H-2A applications filed by Plaintiffs to make, not later
than 30 days before such labor or services are first required to be performed, the
certification described in subsection 8 U.S.C. §1188(a)(1) if the employer has
complied with the criteria for certification (including criteria for the recruitment
/ / /
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of eligible individuals as lawfully prescribed by the Secretary of Labor) as set
forth in 8 U.S.C. §1188(c)( 3);
B. Plaintiffs ask for the issuance of a writ of mandamus pursuant to 28 U.S.C. § 1361
to compel the DOL Defendants to perform all duties owed to Plaintiffs, including the completed
processing of all applications in accordance with the strict time deadlines provided in statute and
regulation in the case of H-2A applications and to issue certifications in accordance with the
strict specified deadlines and with statutory intent that for any action for which there is no
specified deadline, agency action in advance of the employer’s date of need must be completed
sufficiently in advance of the date of need to make the completed agency action of practical use
to enable the availability of temporary foreign workers at the affected employer’s place of
employment on the employer’s date of need;
C. Plaintiffs ask for the issuance of a temporary and, later, permanent injunction that
requires the DHS Defendants in accordance with the APA, 5 U.S.C. §§ 551(13) & 706(1), in
good faith to complete actions according to their own policies, including:
i. The AFM Rules, Chapter 31.4(c), which requires that H-2A petitions are
distributed to adjudication officers within three days of receipt, the adjudication
officer should adjudicate the petitions on the day the cases are assigned to them,
and then once the approval notice is generated and printed it should be sent within
24 hours of the decision;
D. Plaintiffs ask for the issuance of a writ of mandamus pursuant to 28 U.S.C. § 1361
to compel the DHS Defendants to perform all duties owed to Plaintiffs, including the completed
processing of all H-2A petitions in accordance with the deadlines provided by the AFM Rules,
Chapter 31.4(c) and that for any action for which there is no specified deadline, agency action in
advance of the employer’s date of need must be completed sufficiently in advance of the date of
need to make the completed agency action of practical use to enable the availability of temporary
foreign workers at the affected employer’s place of employment on the employer’s date of need;
E. Plaintiffs ask for a declaration that Defendants failed to comply with specified
deadlines as set forth in applicable statutes, regulations, and policies and that such failures were
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solely Defendants fault and were not due to any failure on the part of Plaintiffs who timely
submitted the H-2A applications and H-2A petitions in order to obtain temporary foreign
workers. See, 28 U.S.C. § 2201(a).
F. Plaintiffs ask for an award for their respective attorneys’ fees and other expenses
as well as costs incurred in connection with this action under the Equal Access to Justice Act, 28
U.S.C. § 2412 and 5 U.S.C. § 504 because the actions by the Defendants and their failures to act,
including the Defendants’ failures to act timely, that are complained of in this action were not
substantially justified and there are no special circumstances that make such an award unjust.
G. Plaintiffs ask for any and all such other and further relief as this court may deem
just and proper.
DATED: THE SAQUI LAW GROUP
Counselors to Management
By: /s/ Michael C. Saqui________
Michael C. Saqui
Jennifer M. Schermerhorn, Esq.
Glen A. Williams, Esq.
By: /s/ Robert P. Roy__________
Robert P. Roy, General Counsel
Ventura County Agricultural Association
Attorneys for Petitioners/Plaintiffs
FRESH HARVEST, INC., REITER
BROTHERS, INC., ITO BROS., INC. and
OCEAN BREEZE AG MANAGEMENT, LLC
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afm Adjudicator's Field Manual - Redacted Public Version Chapter 31 Petitions for
Temporary Workers (H Classifications). 31.4 Agricultural Workers (H-2A).
Previous Document | Next Document
31.4 Agricultural Workers (H-2A).
[Ch 31.4 revised 06-24-2009]
(a) General .
The H-2A nonimmigrant classification applies to an alien seeking to perform agricultural labor or
services of a temporary or seasonal nature in the United States. USCIS defers to the Department
of Labor’s determination on the temporary labor certification for H-2A employment as to whether
the proffered position qualifies as agricultural.
(b) Definitions .
(1) Seasonal .
In the H-2A context, employment is of a seasonal nature where it is tied to a certain time of the
year by an event or pattern, such as a short annual growing cycle (including planting, thinning,
harvesting, and similar activities). It can also apply to a longer cycle.
(2) Temporary .
Except in extraordinary circumstances, temporary agricultural employment does not last longer
than one year. See 8 CFR 214.2(h)(5)(iv)(A) . Ordinarily, the certification by the Department of
Labor (DOL) is sufficient evidence that the employment is temporary. See 8 CFR 214.2(h)(5)(iv)
(B) . When, however, the employer files a permanent certification for the same alien or another
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alien for the same position, or where USCIS has other substantial evidence that it is not a
temporary position, the petition will be denied. Id.
(c) Timely Processing .
On August 10, 2007, then-Secretary of Homeland Security Michael Chertoff announced a series
of reforms to include streamlining the H-2A program. As part of the reform process, it is USCIS’
goal to process all H-2A petitions timely and efficiently. See Memorandum: Updated Procedures
for H-2A (Agricultural Worker I-129 Petitions (Oct. 19, 2007), Appendix 31-2 . In accordance with
the October 19, 2007 memo, USCIS provides special handling of H-2A petitions in which:
Personnel in the Service Center mail room are instructed to generate fee receipts, enter
data, and route H-2A petitions for immediate distribution;
H-2A petitions are distributed to adjudication officers no later than the third day after
receipt;
Adjudications officers are reminded to adjudicate unnamed beneficiaries’ H-2A petitions on
the day the cases are assigned to them; and
Once an H-2A approval notice is generated and printed, it should be sent to petitioners
within 24 hours of the decision.
(d) Labor Certification .
An H-2A petition must be filed on Form I-129 with a single valid temporary agricultural labor
certification. See 8 CFR 214.2(h)(5)(i)(A) . Generally, the original temporary labor certification
should be submitted to USCIS. However, a photocopied labor certification may be accepted by
USCIS in cases where the petitioner is filing multiple petitions using the same labor certification.
Each subsequent petition must reference all previously filed petitions using the same temporary
labor certification. The total number of beneficiaries of a petition or series of petitions based on
the same temporary labor certification may not exceed the number of workers indicated on that
document. See 8 CFR 214.2(h)(5)(i)(B) .
In emergent circumstances, a single H-2A petition may be extended for a brief period of time up to
two weeks without extending the temporary labor certification. The H-2A worker, however, must
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continue to be employed by the same employer that obtained the previously approved petition
and must continue to perform the same duties. See 8 CFR 214.2(h)(5)(x) .
(e) H-2A Eligible Countries .
H-2A petitions may only be approved for nationals of countries that the Secretary of Homeland
Security has designated, with the concurrence of the Secretary of State, as eligible to participate
in the H-2A program.
The list of H-2A eligible countries will be published in a notice in the FR on a rolling basis. This list
was initially developed based, in part, on an identification of the top participating countries in the
H-2A and H-2B visa programs and their record of timely acceptance of the return of their nationals
who are removed from the United States.
Designation of countries on the H-2A list of eligible countries will be valid for one year from
publication. The first H-2A eligible countries list was published in the FR on December 18, 2008.
See 73 FR 77043 . This list is also posted on the USCIS website.
A national from a country not on the H-2A eligible country list may only be the beneficiary of an
approved H-2A petition if the Secretary of Homeland Security, in her sole and unreviewable
discretion, determines that it is in the U.S. interest for that alien to be the beneficiary of such a
petition. See AFM Chapter 31.4(h)(3) ; 8 CFR 214.2(h)(5)(i)(F)(1)(ii) .
(f) Petitioner Requirements .
(1) An H-2A petition may be filed by the employer listed on the labor certification, the
employer’s agent, or the association of ’’’’U.S.’’ agricultural producers named as a joint employer
on the labor certification.
A U.S. agent may file a petition only in cases where:
Workers are traditionally self-employed;
Workers use agents to arrange short-term employment on their behalf with numerous
employers; or
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A foreign employer authorizes the agent to act on its behalf.
(2) All H-2A petitions must state the nationality of all beneficiaries .
See AFM Chapter 31.4(e) . To avoid processing delays, petitioners are advised to file the
petitions for workers from designated H-2A eligible countries and non-eligible countries
separately. See 8 CFR 214.2(h)(2)(ii) .
Adjudicating officers will issue a request for evidence when petitions filed on behalf of a
combination of aliens from both H-2A eligible and non-eligible countries lack sufficient evidence to
establish whether the beneficiaries from non-eligible countries qualify for H-2A classification.
(3) Employment-related notifications .
The petitioner must agree to notify USCIS within 2 work days if:
a worker fails to report to work within 5 work days of the employment start date on the
petition or within 5 work days of the start date established by his or her employer, whichever is
later;
the agricultural labor or services for which workers were hired is completed more than
30 days earlier than the employment end date stated on the petition; or
the worker has not reported for work for a period of 5 consecutive work days without the
consent of the employer or the worker is terminated prior to the completion of agricultural labor or
services for which he or she was hired.
See 8 CFR 214.2(h)(5)(vi)(B)(1) . Instructions explaining how a petitioner should make an
employment-related notification to USCIS were published in a notice in the FR on December 18,
2008. See 73 FR 77049 .
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Note:
USCIS defers to the DOL’s definition of “workday” which, according to the Fair Labor Standards
Act, generally means the period between the time on any particular day when an employee
commences his/her "principal activity" and the time on that day at which he/she ceases such
principal activity or activities.
A petitioner that fails to meet these requirements is subject to liquidated damages in the
amount of $10 per violation. Failure to notify USCIS in a timely fashion may be excused at the
discretion of USCIS if it is demonstrated that the delay was due to extraordinary circumstances
beyond the control of the petitioner and USCIS finds the delay commensurate with the
circumstances.
Such a determination will be made on a case-by-case basis. If the petitioner fails to
demonstrate good cause for failure to make a timely notification, USCIS will notify CBP that the
petitioner is liable for liquidated damages. The petitioner will then receive a demand letter for
payment directly from CBP. See 8 CFR 214.2(h)(5)(vi)(B)(3) .
(4) Payment of Fees by Aliens to Obtain H-2A Employment .
An H-2A petition will be denied or revoked on notice if USCIS determines that the petitioner
has collected, or entered into an agreement to collect a fee or compensation as a condition of
obtaining the H-2A employment, or that the petitioner knows or should have known that the
beneficiary has paid or agreed to pay any facilitator, recruiter, or similar employment service as a
condition of obtaining the H-2A employment.
The types of fees that would be prohibited include recruitment fees, attorneys’ fees, and fees
for preparation of visa applications. Prohibited fees do not include the lower of the fair market
value or the actual reasonable costs of transportation to the United States and any payment of
government-specified fees required of persons seeking to travel to the United States (e.g., fees
required by a foreign government for issuance of passports, fees imposed by the U.S. Department
of State for issuance of visas , inspection fees), except where the passing of such costs to the
worker is prohibited by statute or by DOL regulation. See e.g. , Arriaga v. Florida Pacific Farms,
L.L.C. , 305 F.3d 1228 (11th Cir. 2002) (under FLSA, transportation from Mexico to Florida and
visa costs under H-2A program may not be passed to H-2A workers).
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All H-2A petitioners are required to attest in the H Classification Supplement submitted with the
Form I-129 whether:
(A) The petitioner has used a staffing, recruiting, or placement service or agent to locate the
H-2A workers included in the petition. If so, the name & address of the service should be
provided;
(B) The beneficiaries have paid any form of compensation as a condition of the employment
(or have made an agreement to pay such compensation at a later date), not including the lower of
the fair market value or actual reasonable costs of transportation to the United States and
government-specified fees required for travel to the United States (provided the passing of such
costs by the petitioner/employer to the beneficiary is not prohibited by law) for which the worker
may be responsible, and answer the fo llowing:
(i) If the beneficiary has paid any form of compensation, has the beneficiary been
reimbursed? If yes, evidence of the reimbursement must be submitted.
(ii) If the beneficiary has made an agreement to pay such compensation at a later date,
has this agreement been terminated? If yes, evidence of the termination must be submitted.
AND
(C) The petitioner has ever had an H-2A petition denied or revoked because an employee
paid a job placement fee or other compensation. If so, the information about when it was and the
receipt number must be provided. If the worker(s) was/were reimbursed for such fees or
compensation, evidence of reimbursement must be submitted. If the worker(s) was/were not
reimbursed because of the failure to locate the beneficiary, evidence of the efforts to locate the
beneficiary must be submitted.
Adjudicating officers will verify that the petitioner has signed the attestation included on the H
Classification Supplement and will review the petitioner’s answers to ensure that they are
consistent with the petitioner’s type of business.
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If the alien has paid prohibited fees, the petition will not be denied or revoked if the petitioner
demonstrates that:
prior to the filing of the petition, the alien beneficiary has been reimbursed for the
prohibited fees paid;
where the prohibited fees have not yet been paid, that the agreement to pay has been
terminated; or
where, after the petition is filed, the petitioner learns that the prohibition on collecting or
agreeing to collect a fee has been violated by a recruiter or agent, the petitioner notifies USCIS
about the prohibited payments, or agreement to make such payments, within 2 work days of
finding out about such payments or agreements. See 8 CFR 214.2(h)(5)(xi)(A) .
Instructions explaining how a petitioner should make a fee-related notification to USCIS were
published in a notice in the Federal Register on December 18, 2008. See 73 FR 77049 .
If the H-2A petition is denied or revoked on these grounds, then, as a condition of approval of
future H-2A petitions filed within one year of the denial or revocation, the petitioner must
demonstrate that the beneficiary has been reimbursed or that the beneficiary cannot be located
despite the petitioner’s reasonable efforts. See 8 CFR 214.2(h)(5)(xi)(C) .
(g) Multiple Beneficiaries .
More than one beneficiary may be included in an H-2A petition as long as the total number of
beneficiaries does not exceed the number of positions certified by the DOL on the relating
temporary labor certification and the beneficiaries will be performing the same service, or
receiving the same training, for the same period of time, and in the same location. See 8 CFR
214.2(h)(5)(i)(B) .
(h) Beneficiary Requirements.
(1) Petitions filed on behalf of beneficiaries currently in the United States requesting a change
of status or extension of stay in H-2A status must identify each beneficiary and provide evidence
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to show that each beneficiary meets the minimum employment and job training requirements
listed on the temporary labor certification (if applicable).
(2) Petitions filed on behalf of beneficiaries who are outside the United States requesting
consular notification are not required to identify the beneficiaries or to provide evidence of each
beneficiary’s qualifications and/or education with the petition because that evidence may be
submitted to the consulate at the time of a visa application or to the CBP at a port of entry or pre-
flight inspection location upon admission.
(3) Beneficiaries from countries not listed as eligible for H-2A classification. The H
Classification Supplement to the Form I-129 , revised 01-22-2009 (p. 8 – 12 of the form) now
requires a petitioner who chooses to file an H-2A petition on behalf of H-2A workers who are not
from a country that has been designated as an H-2A eligible country to name those beneficiaries
and provide the following information about such beneficiaries:
Full Name;
Date of birth;
Country of birth; and
Country of citizenship.
This provision applies both to beneficiaries who are currently within the United States who are
seeking an extension of H-2A stay or change of status to H-2A, as well as to beneficiaries who
are outside of the country.
A petition filed on behalf of H-2A workers who are not from a country that has been designated
as an H-2A eligible country may be approved only if DHS determines, in its sole and unreviewable
discretion, that it is in the U.S. interest for that alien to be a beneficiary of such petition. See 8
CFR 214.2(h)(5)(i)(F) . In order to make this discretionary determination of U.S. interest, USCIS
may take into account the following four factors, including, but not limited to :
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Factors:
Evidence that a worker with the required skills is not available among U.S. workers or
from among foreign workers from a country on the list of eligible countries;
Evidence that the beneficiary has been admitted to the United States previously in
H-2A status and complied with the terms of his/her status.
Any potential for abuse, fraud, or other harm to the integrity of the H-2A program
through the potential admission of these worker(s) that a petitioner plans to hire; and
Other factors that would serve the U.S. interest, if any.
Each request for a U.S. interest exception is fact-dependent, and therefore must be considered
on a case-by-case basis. Although USCIS will consider any evidence submitted to address each
factor, USCIS has determined that it is not necessary for a petitioner to satisfy each and every
factor. Instead, a determination will be made based on the totality of circumstances.
For factor no. 3 above, USCIS will take into consideration, among other things, whether the
alien is from a country that cooperates with the repatriation of its nationals.
For factor no. 4 above, circumstances that are given weight, but are not binding, include
evidence substantiating the degree of harm that a particular U.S. employer, U.S. industry, and/or
U.S. government entity might suffer without the services of H-2A workers from non-eligible
countries.
Petitions filed on behalf of beneficiaries from non-eligible countries that do not initially provide
sufficient evidence to overcome the requirements of 8 CFR 214.2(h)(5)(i)(F)(1)(ii) will be issued a
request for evidence allowing 30 days to respond to USCIS. See 8 CFR 103.2(b)(8)(ii) and (iv) .
(4) The approval of a permanent labor certification, or the filing of a preference petition for an
alien currently employed by the same petitioner, shall be a reason, by itself, to deny the alien's
extension of stay. See 8 CFR 214.2(h)(16)(ii) .
(i) Decision Procedures .
(1) Approval .
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If the documentary requirements have been met and the petition is approvable, endorse the
action block. The approval period should coincide with the period requested by the petitioner, but
should not exceed the validity dates indicated on the temporary labor certification from the
Department of Labor.
If the alien is present in the United States and requires a change of status, follow the
procedures described in AFM Chapter 30.3 . If the alien is present in the United States and
requires an extension of stay, follow the procedures described in AFM Chapter 30.2 . Notify the
petitioner of the action taken using Form I-797 , Notice of Action. After approval, the file containing
one copy of the petition and the supporting evidence should be forwarded to the Harrisonburg File
Storage Facility (HBG).
(2) Denial .
Prepare a notice of denial and advise the petitioner of the right of appeal to the Administrative
Appeals Office (AAO). Retain the file, in accordance with local procedures, until the appeal period
expires or an appeal is received.
Note:
While the denial of a petition filed on behalf of a national of a country not listed on the H-2A
Eligible Countries List for failure to establish eligibility for the U.S. interest exception in 8 CFR
214.2(h)(5)(i)(F) may be appealed to the AAO, there is no judicial appeal available to challenge
such a discretionary denial, as such decisions, by regulation, are, as noted above, made in the
Secretary’s sole and unreviewable discretion. Id.
(3) Partial Approvals .
A partial approval occurs with petitions for multiple beneficiaries when only some of the
beneficiaries included on the petition are found to be approvable and some must be denied.
For example, a partial approval may result in cases where a petition is filed for a combination of
beneficiaries from H-2A eligible and non-eligible countries and the petitioner is unable to provide
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sufficient evidence in response to a USCIS request for evidence that the beneficiaries from non-
eligible countries meet the U.S. interest requirement of 8 CFR 214.2(h)(5)(i)(F)(1)(ii) .
Since USCIS systems are not capable of counting two actions for one receipt, the action on a
partial approval is counted as an approval for reporting purposes. Generally, a petitioner may
appeal the decision to deny classification to one or more of the beneficiaries or file a new petition
in their behalf.
(j) Transmittal of Petitions .
(1) Visa Applicants .
If the beneficiary requires a visa and requests consular notification, the duplicate of the
approved petition (if submitted), with the supporting documents, shall be sent to the Department
of State’s Kentucky Consular Center (KCC).
(2) Visa-exempt Applicants .
If the beneficiary does not require a visa and requests notification to the port of entry or pre-
flight inspection facility, forward the duplicate petition (if submitted) with supporting documents to
the appropriate port of entry or pre-flight inspection facility.
(k) Special Handling .
(1) Sheepherders .
Until the most recent H-2A final rule went into effect on January 17, 2009, USCIS refrained
from applying the three-year maximum period of stay for H-2A sheepherders. See 73 FR 76891
However, effective January 17, 2009, sheepherders are subject to the same three-year maximum
period of stay and departure requirements applicable to other H-2A workers. This change in the
handling of sheepherders is mandated by the statutory requirement that H-2A employment be of a
temporary nature .
(2) Canadian Custom Harvest or Combine Operators .
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Annually, a group of Canadian custom harvest and combine workers come to the Midwestern
United States to assist U.S. farmers with harvesting wheat, corn, and other crops. Because the
growing season for these crops varies depending on their specific geographical location, a
definitive itinerary of services and locations is generally not provided; however, the operators
typically start working in the South and work their way through a number of states north over the
course of the harvesting season.
Although petitioners filing for Canadian harvest or combine workers may not have a U.S.
address, USCIS has traditionally accepted petitions filed by Canadian employers requesting these
types of workers. Such operators typically are coming into the United States to provide services
for U.S. employers, who have contracted with a member of the Association of Canadian
Harvesters.
(3) Certain Caribbean Residents Seeking Admission to the United States as H-2A Agricultural
Workers .
A visa is currently not required for H-2A workers who are British, French, or Netherlands
nationals, or nationals of Barbados, Grenada, Jamaica, or Trinidad and Tobago, who have their
residence in British, French, or Netherlands territory located in the adjacent islands of the
Caribbean area, or in Barbados, Grenada, Jamaica, or Trinidad and Tobago. See 8 CFR 212.1(b)
(1) .
(l) Adjudicative Issues .
(1) Substitution of Beneficiaries .
Beneficiaries may be substituted for previously approved H-2A workers in the following
situations, as long as the total number of beneficiaries will not exceed the number of workers
authorized in the temporary labor certification:
(A) Before admission .
Substitutions of beneficiaries who have not yet been admitted to the United States are
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processed directly with the consulate or, if the alien is visa exempt, at the port of entry or pre-flight
inspection location.
(B) Stateside substitution :
An H-2A petition may be filed to replace H-2A workers already admitted to the United
States:
Whose employment was terminated earlier than the end date stated on the original
H-2A petition and before the completion of work;
Who failed to report to work within five work days of the employment start date (The
worker has never worked at the work-site and it has been 5 days since his employment was
scheduled to begin); or
Who absconded from the work-site. An H-2A worker has absconded if he or she has
not reported for work for a period of 5 consecutive workdays without the consent of the employer.
(The worker has been working at the work-site, but abandoned his employment for a period of 5
consecutive workdays without the consent of the employer).
To request a stateside substitution, the petitioner must file an amended petition at the
Service Center where the original petition was filed. This amended petition requesting substitution
(s) must be filed with:
A filing fee;
A copy of the temporary labor certification;
A copy of the approval notice covering the workers for which replacements are
sought;
A statement giving each terminated worker’s name, date and country of birth,
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38.
termination date, the reason for termination, and the date that USCIS was notified that the alien
was terminated or absconded, if applicable; and
Other evidence as required under 8 CFR 214.2(h)(5)(i)(D) .
A petition requesting substitution(s) may not be approved where the requirements of
paragraph 8 CFR 214.2(h)(5)(vi) of this section (regarding consent, liabilities and non-
compliance) have not been met.
Additionally, a petition requesting substitution(s) does not constitute the notification
requirements of paragraph 8 CFR 214.2(h)(5)(vi)(B)(1) .
(2) Limitation on Period of Stay .
Generally, H-2A workers are authorized a maximum uninterrupted stay of three (3) years in
H-2A classification.
An individual who has held H-2A status for a total of 3 years may not again be granted H-2A
status until such time as he or she remains outside the United States for an uninterrupted period
of 3 months. See 8 CFR 214.2(h)(5)(viii)(C) .
Absences from the United States that are less than 3 months can interrupt the accrual of time
spent as an H-2A nonimmigrant against the 3-year limit:
If the accumulated stay is 18 months or less, an absence is interruptive if it lasts at least
45 days; or
If the accumulated stay is greater than 18 months, an absence is interruptive if it lasts for
at least 2 months.
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39.
As of January 18, 2009, sheepherders are no longer exempt from this 3-year limitation of stay.
See 73 FR 76906 .
Note:
H-2A aliens do not fall under the exception listed in 8 CFR 214.2(h)(13)(v) . This regulation
refers only to H-1B, H-2B, and H-3 classifications, giving them an exception to the limitation on
the maximum period of stay for aliens who commute part-time to the United States. or who do
not reside continually in the United States and whose employment is seasonal, intermittent, or
for an aggregate of 6 months or less per year.
(3) Extension with a New Employer .
In most cases, an H-2A worker who changes employer cannot begin working for the new
employer until USCIS approves the petition requesting a change of employer.
However, in cases where a new employer that is participating and in good standing with
E-Verify files a petition for a change of employer on behalf of an H-2A alien requesting an
extension of stay, the H-2A alien may work for the new employer, as soon as USCIS receives the
petition.
While the petition is pending, the H-2A alien’s employment authorization is extended up to 120
calendar days. If USCIS does not approve the new petition within 120 days or denies it before
120-day period expires, USCIS will automatically terminate the H-2A alien’s employment
authorization in 15 calendar days. In those cases, E-Verify will not notify the new employer that
USCIS has terminated employment authorization.
At its discretion, USCIS may periodically audit any new employer’s participation in E-Verify, as
well as the status of the alien’s employment on a post-adjudication basis. Violators will be subject
to petition and/or status revocation.
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44.
3/14/2016 U.S. Citizenship and Immigration Services ­ USCIS Processing Time Information
https://egov.uscis.gov/cris/processingTimesDisplay.do;jsessionid=abc3cMOZRd0ax8yaIc2nv 1/2
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USCIS Processing Time Information
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USCIS Processing Time Information for the
California Service Center
Instructions for Using the Chart
The chart will show most of the types of forms processed at the field office or service center. You can select the form type that applies to your case from the drop­down menu.
If the field office or service center is meeting its goal for processing a form, you will find the timeframe listed in months. For example, if the office is processing Form N­400
naturalization applications in five months or less, then the chart will say "5 months." However, if the office is experiencing a processing delay, you will find the filing date of the last
case that the office completed before updating the chart.
Important Information About Form I­765, Application for Employment Authorization
You can now submit inquiries about the status of your Form I­765 after your case has been pending more than 75 days.
Please note that for Form I­765 category (c)(8), based on a pending asylum application, the processing timeframes listed only apply to an initial filing.
Please note that the 90­day period for adjudicating Form I­765 category (c)(33) filed together with Form I­821D, requesting deferred action for childhood arrivals, does not
begin until we have made a decision on your request for deferred action.
Field Office Processing Dates for California Service Center as of: January 31, 2016
Form Title Classification or Basis for Filing:
Processing
Timeframe:
I­102
Application for Replacement/Initial Nonimmigrant
Arrival/Departure Record
Initial issuance or replacement of a Form I­94 2.5 Months
I­129 Petition for A Nonimmigrant Worker Blanket L 2 Months
I­129 Petition for A Nonimmigrant Worker E ­ Treaty traders and investors 2 Months
I­129 Petition for A Nonimmigrant Worker H­1B ­ Specialty occupation ­ Visa to be issued abroad 2 Months
I­129 Petition for A Nonimmigrant Worker H­1B ­ Specialty occupation ­ Change of status in the U.S. 2 Months
I­129 Petition for A Nonimmigrant Worker H­1B ­ Specialty occupation ­ Extension of stay in the U.S. August 28, 2015
I­129 Petition for A Nonimmigrant Worker H­2A ­ Temporary workers 1 Months
I­129 Petition for A Nonimmigrant Worker H­2B ­ Other temporary workers 1 Months
I­129 Petition for A Nonimmigrant Worker H­3 ­ Temporary trainees 2 Months
I­129 Petition for A Nonimmigrant Worker L ­ Intracompany transfers 1 Months
I­129 Petition for A Nonimmigrant Worker O ­ Extraordinary ability 2 Weeks
I­129 Petition for A Nonimmigrant Worker P ­ Athletes, artists, and entertainers 2 Weeks
I­129 Petition for A Nonimmigrant Worker
Q ­ Cultural exchange visitors and exchange visitors participating in the Irish Peace
process
2 Months
I­129 Petition for A Nonimmigrant Worker R ­ Religious occupation August 18, 2015
I­129 Petition for A Nonimmigrant Worker TN ­ North American Free Trade Agreement (NAFTA) professional 2 Months
I­129F Petition for Alien Fiance(e) K­1/K­2 ­ Not yet married ­ fiance and/or dependent child 5 Months
I­129F Petition for Alien Fiance(e) K­3/K­4 ­ Already married ­ spouse and/or dependent child 5 Months
I­130 Petition for Alien Relative Permanent resident filling for a spouse or child under 21 5 Months
I­130 Petition for Alien Relative U.S. citizen filing for a spouse, parent, or child under 21 5 Months
I­130 Petition for Alien Relative U.S. citizen filing for an unmarried son or daughter over 21 5 Months
I­130 Petition for Alien Relative Permanent resident filling for an unmarried son or daughter over 21 May 12, 2015
I­130 Petition for Alien Relative U.S. citizen filing for a married son or daughter over 21 April 25, 2012
I­130 Petition for Alien Relative U.S. citizen filing for a brother or sister May 17, 2011
I­131 Application for Travel Document All other applicants for advance parole 3 Months
I­360 Petition for Amerasian, Widow(er), or Special Immigrant All other special immigrants August 16, 2015
I­360 Petition for Amerasian, Widow(er), or Special Immigrant Religious workers August 16, 2015
AILA Doc. No. 16031430. (Posted 3/14/16)
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